Cosby retrial could favor defense though publicity a wild card

Actor and comedian Bill Cosby (2nd L) stands as his publicist, Andrew Wyatt, addresses the media after a judge declared a mistrial in Cosby's sexual assault trial at the Montgomery County Courthouse in Norristown, Pennsylvania

By Anthony Lin and Noeleen Walder

(Reuters) – A retrial of Bill Cosby on sexual assault charges will likely offer major advantages to the defense, former prosecutors and defense lawyers say, but the enormous publicity surrounding the case may also produce a second jury that is more eager to convict.

Judge Steven O’Neill of the Montgomery County Court of Common Pleas in Pennsylvania declared a mistrial on Saturday after jurors said they were deadlocked after 52 hours of deliberations.

Montgomery County District Attorney Kevin Steele immediately announced he would seek a retrial.

New York lawyer Paul Callan, a former prosecutor, said he thought it would “exceptionally difficult” for the state to win a second trial against Cosby.

Callan noted the defense would soon be able to access a full transcript of all the prosecution witness testimony to try to highlight inconsistencies.

Linda Fairstein, former head of the sex crimes unit with the Manhattan District Attorney’s Office, agreed that retrials are usually better for the defense.

“From my perspective, a retrial is never an advantage because, as a prosecutor, you put your best case on,” she said.

New York defense lawyer Harvey Fishbein noted Cosby’s lawyers had shown fewer of their cards, resting without calling any witnesses. The comedian also did not testify in his own defense.

“They might decide to re-evaluate that position,” said Fishbein.

The prosecution is also under more pressure than the defense in terms of expending public resources, he added. One hung jury raises the possibility of another one, and the government needs to weigh how far it wants to go to win a conviction.

But that calculus can also change in very high-profile cases, noted Fishbein, who recently had that experience while representing Pedro Hernandez, who was charged with murdering six-year-old Etan Patz in New York in 1979.

After a lone holdout deadlocked the jury in Hernandez’s first trial, the public and media outcry made it extremely hard to find an impartial panel for the retrial, said Fishbein.

“We had to go through 1,000 people to get a jury,” he said.

Hernandez was convicted and sentenced to 25-years-to-life in April. Fishbein said he was appealing the verdict.

Fishbein said he sees similarities with the Cosby case in terms of public opinion.

“There’s a lot at stake here with the fact that so many women have filed complaints against him,” said Fishbein. “It’s going to be very hard to find a fair and impartial jury anywhere in the Northeast.”